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In October of 2017, the Georgia Supreme Court decided the case of Olevik v. State. This case examined the extent of a DUI suspect's right against self-incrimination under the Georgia constitution. Specifically, the Court was asked to decide "whether this state constitutional protection prohibits law enforcement from compelling a person suspected of DUI to blow their deep lung air into a breathalyzer.”

As this is a complex case, the analysis of this case has been broken up into three posts. The first post looks at the facts of the case and the protections provided by the Georgia Constitution. This post looks at the court's discussion of breath tests and whether compelling a suspect to perform such a test violates his or her right against self-incrimination. And the final post looks at the facts as applied to Olevik's specific case.

In the prior post, we discussed how the court looked at Paragraph XVI of the Georgia Constitution and determined that self-incrimination in Georgia includes protections against both compelled testimony and compelled actions.

Self-Incrimination And Breath Tests

The court then turned its analysis to whether or not having to complete a breath test was self-incriminating. The court first looked at prior cases where it had found actions to be self-incriminating such as a case where a defendant was made to “place his foot in certain footprints near [a] crime scene” and a case where a defendant was “required to stand up at trial so that the witness could verify that the defendant's leg had been amputated in a way that corresponded to tracks left at the crime scene.” It also looked at cases where it had reached the opposite conclusion, including cases where the defendant's self-incrimination right was not violated because he consented to the act and was not compelled to perform it. The court concluded that “Paragraph XVI prohibits compelling a suspect to perform an act that itself generates incriminating evidence; it does not prohibit compelling a suspect to be present so that another person may perform an act generating such evidence.” It also concluded that “like other constitutional rights, a suspect may consent to take actions that Paragraph XVI would prevent the State from compelling.”

The court stated that a breath test requires deep lung air. This type of air “provides the most reliable sample because it is in the alveolar region of the lungs where ‘alcohol vapor and other gases are exchanged between breath and blood.'” In order to get a breath sample, a person must cooperate and “blow deeply into a breathalyzer for several seconds in order to produce an adequate sample.” Regular breathing is not enough.

The State argued that participating in a breath test was not a compelled act as “a breath test only captures a ‘substance' naturally excreted by the human body, in the same way that collecting a urine sample does not violate a defendant's right against self-incrimination.” The court disagreed with this comparison, stating that the test was not collecting a regular breath but a deep lung breath. The court pointed out that to get the required breath sample the defendant has to breathe a sustained and strong breath into the machine for several seconds. The court continued, “[i]ndeed, for the State to be able to test an individual's breath for alcohol content, it is required that the defendant cooperate by performing an act.” (Emphasis in case). The court reasoned that “[c]ompelling a defendant to perform an act that is incriminating in nature is precisely what Paragraph XVI prohibits.” The court later stated that “whether a defendant is compelled to provide self-incriminating evidence in violation of Paragraph XVI is determined under the totality of the circumstances.”

The court determined that overruling its prior decision, Klink, was appropriate in light of the subsequent case law that showed that Klink's reasoning was unsound. The court stated that “[a]ccordingly, we overrule Klink and other cases to the extent they hold that Paragraph XVI of the Georgia Constitution does not protect against compelled breath tests or that the right to refuse to submit to such testing is not a constitutional right.”

Right To Refuse? Depends On The Grounds For Refusal

This decision highlights one of the unusual facets of law where something may be permissible under certain legal grounds but not others.

Here, if a defendant contends that they don't have to take a breath test because the officer needs to get a warrant first, this would be incorrect. The U.S. Supreme Court determined that breath tests can be administered as searches incident to arrest, an exception to the Fourth Amendment's warrant requirement. And the Georgia Supreme Court, in Olevik, stated that its own search and seizure provision provides no greater protections than the federal constitution. Thus, police can administer a breath test as a search incident to arrest and not violate a person's right against unreasonable search and seizure.

However, Olevik gives defendant's another grounds for refusal. The court determined that a defendant cannot be compelled to perform a breath test because this would violate his or her right against self-incrimination as the Georgia Constitution protects its citizens from incriminating themselves through both words and actions. Thus, a defendant cannot be forced to perform a breath test and if a police officer did compel such an action, it would likely be found to violate the defendant's right against self-incrimination.

Thus, a defendant who asks for his or her breath test to be suppressed on Fourth Amendment grounds would most likely be denied, while after Olevik, a defendant could ask for suppression on Fifth Amendment grounds and have the motion granted.

If you have been charged with a DUI, contact Georgia DUI Attorney Richard Lawson today to discuss your case. ​We never assume a person is guilty just because they have been charged. We are available 24/7. Never assume your case is hopeless; we do not. Call now and avoid severe Georgia DUI Penalties.

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